Reese v. Jones
| Decision Date | 09 April 1998 |
| Citation | 249 A.D.2d 676,671 N.Y.S.2d 170 |
| Parties | , 1998 N.Y. Slip Op. 3332 In the Matter of Bradley R. REESE, Appellant, v. Denise JONES, Respondent. |
| Court | New York Supreme Court — Appellate Division |
McNamee, Lochner, Titus & Williams (Bruce J. Wagner, of counsel), Albany, for appellant.
Friedman & Manning (Stephen L. Molinsek, of counsel), Delmar, for respondent.
Before MIKOLL, J.P., and CREW, YESAWICH, PETERS and CARPINELLO, JJ.
MIKOLL, Justice Presiding.
Appeal from an order of the Family Court of Albany County (Maney, J.), entered October 17, 1997, which dismissed petitioner's application, in a proceeding pursuant to Family Court Act article 6, for modification of a prior order of custody and visitation.
The parties, never married to one another, are the parents of an eight-year-old son, Jordan, who has resided with respondent in the Albany area since birth. Petitioner has resided in Florida since the child's birth. Prior Family Court proceedings resulted in orders awarding custody to respondent and visitation to petitioner. The most recent substantive order, granted in September 1995, resulted from petitioner's application for increased visitation. The parties agreed to an expanded visitation schedule whereby petitioner would have weekend visitation in the Capital District with Jordan approximately every six weeks, or more frequently if petitioner's schedule permitted; one week every year from December 27 to January 2; the Thanksgiving holiday from Wednesday to Sunday in alternate years; one week during spring recess in alternate years; and one week in February identified as "President's week" in alternate years. In addition, the parties agreed to liberal, reasonable telephone contact, as to which petitioner testified that he calls his son every day.
The parties could not agree, however, upon two points: (1) petitioner's request for a consecutive three-week period of visitation during the summer, and (2) visitation on Christmas day in alternate years. After a hearing held in September 1995 which was limited to these two aspects of petitioner's request, Family Court granted petitioner three weeks of summer visitation, two weeks of which would be consecutive, and ordered that Jordan would continue to spend Christmas Eve and Christmas Day with respondent as he has since birth. No appeal from that order was taken.
In August 1997, petitioner sought modification of the September 25, 1995 order so as to permit visitation with Jordan every Thanksgiving and on Christmas Eve/Christmas Day in alternate years. Upon respondent's motion Family Court dismissed the petition without prejudice, finding no change in circumstances to warrant a modification. The sole question on this appeal is the propriety of that dismissal.
We affirm. To prevail upon a petition seeking modification of visitation or custody, a petitioner must...
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